More 404(b) Goodness: Admission of Unproven, Extrinsic Evidence of Defendant's Involvement with Drugs Reversible Error in FIP Case

United States v. Sumlin, No. 05-51720 (5th Cir. June 15, 2007) (Smith, Barksdale, Dennis)

Sumlin was tooling along in a red Corvette outside of Marlin, Texas when he passed a marked police car driven by an officer who was "looking for persons that are trafficking large amounts of illegal drugs down the highway." The rest practically writes itself: The officer pulled Sumlin over for not having a front license plate. One thing led to another and the officer arrested Sumlin for driving with a suspended license. While waiting for a tow truck to impound the car, the officer searched the Corvette and found a loaded 9mm handgun and what the officer believed to be a partially smoked marijuana cigarrette. Later, at the impound lot, a dog alerted on the 'Vette, but no drugs were ever found in the car. The government never tested the suspected marijuana.

Sumlin happened to be a felon, so he was charged with being a felon in possession of a firearm. He went to trial, where this transpired:

At trial, the government called Sergeant Kingsley, the arresting officer, who testified as to the circumstances of the stop and arrest and his drug interdiction efforts generally. Additionally, he testified that he suspected that Sumlin was transporting narcotics, because: (1) the body of Sumlin’s car had several loose or worn screws, which, according to Kingsley, indicated the possible transportation of large quantities of illegal drugs, as traffickers frequently hide drugs in the bodies of their vehicles to prevent law enforcement detection; (2) he spent some time with the car on the side of the road attempting to remove the speakers to see if anything was hidden beneath them; (3) he questioned Sumlin about the friend Sumlin had called to retrieve his car, because, according to Kingsley, drug couriers, i.e., those who transport large quantities of drugs and money, travel in pairs; (4) though he found only one cigarette, allegedly containing marijuana, he thought that he would find more drugs; (6) he followed Sumlin’s car to the impound lot and contacted the district attorney who came there to assist in drafting a search warrant for the undercarriage of the car; (7) the canine unit came to the lot and the dog alerted on the front and driver’s side of the vehicle; and (8) he questioned Sumlin about drugs when Sumlin was brought from the jail to the impound lot.

After hearing this testimony, the judge threatened to declare a mistrial. Nevertheless, for reasons not explained in the opinion, the trial continued. When Sumlin put on his case he called his mother as a witness, and she testified that it was her gun and she'd left it in the Corvette the day before Sumlin's arrest.

Things took another unusual turn after the jury found Sumlin guilty. Sumlin was facing a 15-year mandatory minimum, and an advisory guideline range of 235 to 293 months. Over the Government's objection, the district court sua sponte departed downward to 24 months.

The Government appealed the sentence. Sumlin cross-appealed, arguing, among other things, that the district court erred in admitted the arresting officer's drug-suspicion testimony.

The court of appeals agreed with Sumlin that the officer's testimony was inadmissible under FRE 404(b) and that the error was not harmless. It first rejected the Government's res gestae contention that the drug-suspicion testimony was intrinsic evidence, and therefore not governed by 404(b) in the first place. The court held that it was extrinsic evidence, and squarely within the purview of 404(b), because 1) the Government didn't prove that Sumlin actually transported drugs, and 2) this wasn't a situation where "the evidence of the charged and uncharged offenses were both part of a single criminal episode" since "[t]he testimony discussed events far beyond the time period relevant to Sumlin’s possession of the firearm."

Since 404(b) covered the testimony, the court went on to apply the Beechum two-step (relevance to issue other than character, and 403 balancing). At step one the court "first address[es] the threshold question of whether the government offered sufficient proof that the defendant committed the alleged extrinsic offense." The evidence here was "clearly insufficient to prove the other crime, wrong, or act of drug transportation."

[T]he officer’s casual testimony regarding the untested partially-smoked cigarette found in the Corvette’s ashtray might barely support a conclusion that it was his and contained marijuana, but it was clearly insufficient to prove any of the other essential elements of unlawful drug transportation, e.g., that Sumlin transported such drugs with the intent to manufacture, distribute, or dispense any controlled substance. See e.g., 18 U.S.C. § 841 et seq. Therefore, because the proof of the extrinsic act of drug transportation is insufficient, it is relevant only to the defendant’s character and should not have been admitted. Thus, we need not move on to the second step under Beechum.

Finally, the court concluded that the error in admitting the testimony was not harmless because it was a close case and drug evidence is especially prejudicial. The court therefore reversed Sumlin's conviction.